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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Jones, R v. [2002] UKHL 5 (20th February, 2002) URL: https://www.bailii.org/uk/cases/UKHL/2002/5.html Cite as: (2002) 166 JP 333, [2002] 2 Cr App Rep 9, (2002) 166 JPN 431, [2002] 2 Cr App R 9, [2002] UKHL 5, [2003] AC 1, [2002] 2 All ER 113, [2002] 2 WLR 524, [2002] HRLR 23, [2003] 1 AC 1 |
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Lord Bingham of Cornhill Lord Nolan Lord Hoffmann Lord Hutton Lord Rodger
of Earlsferry
(APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 20 FEBRUARY 2002
[2002] UKHL 5
LORD BINGHAM OF CORNHILL
My Lords,
1. The question before the House, rightly
certified by the Court of Appeal (Criminal Division) as one of general public importance, is this:
To that question the Court of Appeal gave an affirmative answer, while emphasising that the discretion to proceed with a trial in the absence, from the beginning, of the defendant is one to be exercised with extreme care and only in the rare
case where, after full consideration of all
relevant
matters, including in particular the fairness of a trial, the judge concludes that the trial should proceed: [2001] 3 WLR 125, at pp 135-136, para 22.
2. The agreed facts are brief. On 18 August 1997 a robbery
took place at a post office in Liverpool in the course of which some £87,000 were stolen. The appellant (Mr
Jones)
was arrested nearby shortly afterwards and was charged. On 3 December 1997 he and a co-defendant, Mr
Roberts,
were committed on bail for trial at the Crown Court in Liverpool. In January 1998 both defendants were arraigned and pleaded not guilty. A trial date of 9 March 1998 was fixed but
vacated
and
replaced
with a trial date of 1 June 1998. On 1 June 1998, neither the appellant nor his co-defendant surrendered to the Crown Court for trial and warrants were issued for their arrest. The trial was
relisted
to commence on 5 October 1998. Neither the appellant nor his co-defendant had been arrested by that date, and neither had surrendered. The case was adjourned to the following day, when it was listed for trial before His Honour Judge Holloway. The appellant and his co-defendant had still not been arrested and they had still not surrendered. The legal
representatives
acting for the appellant had previously withdrawn from the proceedings in light of his failure to attend on 1 June 1998, and at the hearing on 6 October those
representing
the co-defendant also withdrew from the proceedings.
3. The transcript of the hearing on 6 October shows that the initial reaction
of the judge, based on instinct and long experience, was that a trial could not begin in the absence of a defendant, whatever the
reason
for his absence. The judge showed obvious
reluctance
to embark on the trial in those circumstances. It was however urged upon him that further delay would be
very
unfair to a large body of witnesses, some of whom had undergone a
very
traumatic experience, and after
reference
to the decided cases he
ruled
that the trial should begin, taking the
view
that the defendants had deliberately frustrated the attempt of the prosecuting authorities to have the case finally concluded. He indicated that anything of advantage to the defendants would be highlighted during the evidence and that any material of assistance to the defendants would be put before the jury. The trial accordingly proceeded and the judge in his summing up warned the jury not to hold the absence of the defendants against them.
4. On 9 October 1998 both the appellant and his co-defendant were convicted on unanimous verdicts
of conspiracy to
rob,
and on the same day the judge sentenced each of them to 13 years' imprisonment. It was not until 14 months later, at the end of December 1999, that the appellant was arrested. He was brought before the court and admitted his failure to surrender to custody. At a hearing before Judge Holloway on 4 January 2000, the appellant was sentenced to serve 12 months' imprisonment for his failure to surrender to custody, concurrently with the sentence already imposed upon him for conspiracy to
rob.
The appellant sought leave to appeal against conviction and, on
refusal
by the single judge,
renewed
his application to the full court. The
renewed
application was listed to be heard on 16 January 2001, with other appeals
raising
a similar issue. The appellant was
represented
by leading and two junior counsel at that hearing when leave to appeal was granted and his appeal heard. It was however dismissed on 31 January 2001. Having
ruled
on the issue of principle, the Court of Appeal considered the appellant's case and at pp 143-144, para 41, said:
No application to call fresh evidence was made to the Court of Appeal. At the hearing on 4 January 2000 it was acknowledged by counsel representing
the appellant that his failure to appear on the date fixed for trial had been deliberate. It was not suggested either at that hearing or in the Court of Appeal that he had been unaware of his obligation to appear on the date fixed for the trial or that he had been unaware of that date or that he had been unaware of the likely consequences if he did not appear.
5. The certified question raises
a question of principle, but it falls to be answered in the factual context of this case. It is particularly important to note that the appellant was arraigned and pleaded not guilty in January 1998, but that his trial did not then commence:
R
v
Tonner (1985) 80 CrAppR 170. He was bailed to appear at his trial on 1 June 1998. He had the benefit of legal aid to instruct, and did instruct, solicitors and counsel to
represent
him at his trial. He knew the date of the trial and of his obligation to attend and deliberately decided to absent himself for
reasons
of his own. He had no
reason
to believe that the trial would not proceed in his absence or that his legal
representatives
would be able to
represent
him if he did not appear.
6. For very
many years the law of England and Wales has
recognised
the
right
of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a
very
important feature of an effective jury trial. But for many years problems have arisen in cases where, although the defendant is present at the beginning of the trial, it cannot (or cannot conveniently or
respectably)
be continued to the end in his presence. This may be because of genuine but intermittent illness of the defendant (as in
R
v
Abrahams (1895) 21
VLR
343 and
R
v
Howson (1981) 74 CrAppR 172); or misbehaviour (as in
R
v
Berry (1897) 104 LT Jo 110 and
R
v
Browne (1906) 70 JP 472); or because the defendant has
voluntarily
absconded (as in
R
v
Jones
(
Robert)
(No 2) [1972] 1 WLR 887 and
R
v
Shaw (Elvis) [1980] 1 WLR 1526). In all these cases the court has been
recognised
as having a discretion, to be exercised in all the particular circumstances of the case, whether to continue the trial or to order that the jury be discharged with a
view
to a further trial being held at a later date. The existence of such a discretion is well-established, and is not challenged on behalf of the appellant in this appeal. But it is of course a discretion to be exercised with great caution and with close
regard
to the overall fairness of the proceedings; a defendant afflicted by involuntary illness or incapacity will have much stronger grounds for
resisting
the continuance of the trial than one who has
voluntarily
chosen to abscond.
7. In R
v
Abrahams (1895) 21
VLR
343 at 347 Williams J opined that if an accused person failed to appear at trial and was found, when the trial came on, to have absconded, he had clearly waived his
right
to be present and the prosecution might elect to go on with the trial in his absence; in such event, the judge would exercise his discretion whether to allow the trial to continue, paying particular attention to whether the defendant was
represented.
But those were not the facts of that case, and these observations must be treated as obiter. It was not until 1991 that the lawfulness of commencing a trial on indictment in the absence of the defendant came before the court as a matter for decision. It may well be that the more
restrictive
approach taken in earlier days towards the bailing of defendants charged with serious offences helped to ensure that such defendants did appear at their trials. The mandatory terms of the Bail Act 1976 have led to the grant of bail even to defendants, such as the appellant, who might well be thought suitable subjects for custodial
restraint
pending trial. Be that as it may, the issue fell to be decided in
R
v
Jones,
Planter and Pengelly [1991] CrimLR 856. In that case three defendants stood trial charged with a number of offences, but after some days two of the defendants, who were on bail, absconded and the
recorder
aborted the trial against all three defendants and discharged the jury. When the case was listed to be tried on a second occasion, one defendant appeared and the other two did not. The trial judge ordered that the trial should begin against the absent defendants as well as the defendant who was present, and on appeal it was argued that he should not have begun the trial against the absent defendants. That contention was
rejected.
As appears from the transcript of the judgment of Lord Lane CJ, giving the judgment of the court, it was held to be quite plain in principle that there was a discretion in the judge to order a trial to continue, or indeed to start, not only where a person had
voluntarily
absented himself but also, as Griffiths LJ had held in
R
v
Howson (1981) 74 CrAppR 172, where he had been involuntarily absent. A similar ground of appeal was advanced, unsuccessfully, in
R
v
Donnelly and Donnelly (Court of Appeal (Criminal Division), unreported, 12 June 1997). The House must now decide whether it should overrule this authority as being inconsistent with Strasbourg jurisprudence, or contrary to principle, or apt in practice to work injustice. Counsel for the appellant submits that the authority should be overruled on all those grounds.
8. The European Court of Human Rights
and the Commission have
repeatedly
made clear that it
regards
the appearance of a criminal defendant at his trial as a matter of capital importance: see, for example, Poitrimol
v
France (1993) 18 EHRR 130, at p 146, para 35; Pelladoah
v
Netherlands (1994) 19 EHRR 81, at p 94, para 40; Lala
v
Netherlands (1994) 18 EHRR 586, at p 597, para 33. That court has also laid down
(1) that a fair hearing requires
a defendant to be notified of the proceedings against him: Colozza
v
Italy (1985) 7 EHRR 516, at pp 523-524, para 28; Brozicek
v
Italy (1989) 12 EHRR 371;
(2) that a person should as a general principle be entitled to be present at his trial: Ekbatani v
Sweden (1988) 13 EHRR 504, at p 509, para 25;
(3) that a defendant in a criminal trial should have the opportunity to present his arguments adequately and participate effectively: Ensslin, Baader and Raspe
v
Germany (1978) 14 DR 64, at p 115; Stanford
v
United Kingdom (1994) Series A/282-A;
(4) that a defendant should be entitled to be represented
by counsel at trial and on appeal, whether or not he is present or has previously absconded: Delcourt
v
Belgium (1970) 1 EHRR 355, pp 366-367, para 25; Poitrimol
v
France, above, at pp 146, 147, paras 34, 38; Pelladoah
v
Netherlands, above, at p 94, para 40; Lala
v
Netherlands, above, at pp 597-598, paras 33-34;
Van
Geyseghem
v
Belgium (Application No 26103/95, 21 January 1999), at p 11, para 34; Omar
v
France (1998) 29 EHRR 210 at p 233, paras 41-42.
The right
to be defended has also been described by the European Court of Justice as a fundamental
right
deriving from the constitutional traditions common to the member states of the European Union: Krombach
v
Bamberski, Case C-7/98, The Times, 30 March 2000.
9. All these principles may be very
readily
accepted. They are given full effect by the law of the United Kingdom. But the European Court of Human
Rights
has never found a breach of the Convention where a defendant, fully informed of a forthcoming trial, has
voluntarily
chosen not to attend and the trial has continued. In the Ensslin case, in which proceedings were continued during the absence of the defendants caused in large measure by self-induced illness, the proceedings were held to have been properly continued. In Poitrimol
v
France (above, at p 145, para 31) the court questioned whether a full hearing on appeal could be
required
by a defendant who had waived his
right
to appear and defend himself at trial. In
Van
Geyseghem
v
Belgium (above, at p 9, para 28) the court was not concerned that the applicant had not wished to avail herself of her
right
to attend an appeal hearing. In a concurring opinion in that case Judge Bonello (at p 16) held that the presence of a defendant during his trial was basically his
right,
not his obligation. There is nothing in the Strasbourg jurisprudence to suggest that a trial of a criminal defendant held in his absence is inconsistent with the Convention.
10. In turning to general principle, I find it hard to discern any principled distinction between continuing a trial in the absence, for whatever reason,
of a defendant and beginning a trial which has not in law commenced. If, as is accepted, the court may properly exercise its discretion to permit the one, why should it not permit the other? It is of course true that if a trial has begun and
run
for some time, the inconvenience to witnesses of attending to testify again on a later occasion, and the waste of time and money, are likely to be greater if the trial is stopped than in the case of a trial that has never begun. But these are matters which, however
relevant
to the exercise of discretion, provide no ground for holding that a discretion exists in the one case and not in the other. The common law of Scotland, as I understand, provided, and section 92(1) of the Criminal Procedure (Scotland) Act 1995 now stipulates, that no part of a trial on indictment may take place outwith the presence of the accused. The law of England and Wales, while conferring a
right
and imposing an obligation on the defendant to be present at a trial on indictment, has never been held to include any comparable
rule.
If a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial,
voluntarily
absents himself, there is no
reason
in principle why his decision to
violate
his obligation to appear and not to exercise his
right
to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended.
11. Counsel for the appellant laid great stress on what he submitted was the inevitable unfairness to the defendant if a trial were to begin in his absence after he had absconded. His legal representatives
would be likely to
regard
their
retainer
as terminated by his conduct in absconding, as happened in this case. Thus there would be no cross-examination of prosecution witnesses, no evidence from defence witnesses, and no speech to the jury on behalf of the defendant. The judge and prosecuting counsel, however well-intentioned, could not know all the points which might be open to the defendant. The trial would be no more than a paper exercise (as Judge Holloway at one point described it) almost inevitably leading to conviction. The answer to this contention is, in my opinion, that one who
voluntarily
chooses not to exercise a
right
cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it. If a defendant
rejects
an offer of legal aid and insists on defending himself, he cannot impugn the fairness of his trial on the ground that he was defended with less skill than a professional lawyer would have shown. If, after full professional advice, he chooses not to exercise his
right
to give sworn evidence at the trial, he cannot impugn the fairness of his trial on the ground that the jury never heard his account of the facts. If he
voluntarily
chooses not to exercise his
right
to appear, he cannot impugn the fairness of the trial on the ground that it followed a course different from that which it would have followed had he been present and
represented.
12. Considerations of practical justice in my opinion support the existence of the discretion which the Court of Appeal held to exist. To appreciate this, it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return
of a just
verdict
in
relation
to any and all defendants is dependent on their being jointly indicted and jointly tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause
real
anguish to witnesses and
victims;
or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are
very
rare.
But a system of criminal justice should not be open to manipulation in such a way.
13. I would accordingly answer Yes to the certified question and dismiss this appeal. In doing so I would stress, as the Court of Appeal did in paragraph 22 of its judgment, at pp 135-136, that the discretion to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. If the absence of the defendant is attributable to involuntary illness or incapacity it would very
rarely,
if ever, be
right
to exercise the discretion in favour of commencing the trial, at any
rate
unless the defendant is
represented
and asks that the trial should begin. The Court of Appeal's check-list of matters
relevant
to exercise of the discretion (see paragraph 22(5)) is not of course intended to be comprehensive or exhaustive but provides an invaluable guide. I would add two observations only.
14. First, I do not think that "the seriousness of the offence, which affects defendant, victim
and public", listed in paragraph 22(5)(
viii)
as a matter
relevant
to the exercise of discretion, is a matter which should be considered. The judge's overriding concern will be to ensure that the trial, if conducted in the absence of the defendant, will be as fair as circumstances permit and lead to a just outcome. These objects are equally important, whether the offence charged be serious or
relatively
minor.
15. Secondly, it is generally desirable that a defendant be represented
even if he has
voluntarily
absconded. The task of
representing
at trial a defendant who is not present, and who may well be out of touch, is of course
rendered
much more difficult and unsatisfactory, and there is no possible ground for criticising the legal
representatives
who withdrew from
representing
the appellant at trial in this case. But the presence throughout the trial of legal
representatives,
in
receipt
of instructions from the client at some earlier stage, and with no object other than to protect the interests of that client, does provide a
valuable
safeguard against the possibility of error and oversight. For this
reason
trial judges
routinely
ask counsel to continue to
represent
a defendant who has absconded during the trial, and counsel in practice accede to such an invitation and defend their absent client as best they properly can in the circumstances. The current legal aid
regulations
provide for that contingency: see the Criminal Defence Service (General) (No 2)
Regulations
2001 (SI 1437/2001). It is in my opinion a practice to be encouraged when the defendant absconds before the trial begins. But the failure to follow it here gives no ground for complaint by the appellant. The Court of Appeal said in their judgment, at p 143, para 41:
That conclusion has not been challenged on behalf of the appellant and is in my opinion a tenable conclusion. While there is no direct evidence to show that the appellant knew what the consequences of his absconding would be, there is nothing to suggest a belief on his part that the trial would not go ahead in his absence or that, although absent, he would continue to be represented.
His decision to abscond in flagrant breach of his bail conditions could
reasonably
be thought to show such complete indifference to what might happen in his absence as to support the finding of waiver. I note, however, the
reservations
expressed by my noble and learned friends concerning the finding of waiver, and
recognise
the force of their
reasoning.
If, contrary to my opinion, the Court of Appeal were wrong to make the finding of waiver, and I am wrong to accept it, I would nonetheless hold that the appellant enjoyed his convention
right
to a fair trial, for all the
reasons
given by my noble and learned friend Lord
Rodger
of Earlsferry.
LORD NOLAN
My Lords,
16. I have had the advantage of reading
a draft of the speech of my noble and learned friend Lord Bingham of Cornhill. For the
reasons
he gives, I too would dismiss this appeal. In
view
of the importance of the case, however, I would wish to add a few words of my own on two aspects of the matter.
17. First, in common, I believe, with all of your Lordships, I would hold that under English law the discretion of the trial judge to proceed with the trial in the absence of the defendant exists in principle (subject to the satisfaction of all the appropriate safeguards) not only after but before the trial has begun, though naturally it will have to be exercised with even greater care in the latter case. The decision on this point of the Court of Appeal in R
v
Jones,
Planter and Pengelly [1991] CrimLR 856 was in my judgment correct and should be upheld.
18. Secondly, I would not for my part criticise the conclusion of the Court of Appeal, [2001] 3 WLR 125, 143, in paragraph 41 of their judgment, that "this defendant
had, clearly and expressly by his conduct, waived his right
to be present and to be legally
represented."
In the case of an absconding defendant the critical question for the judge, as it seems to me, is whether the defendant has deliberately and consciously chosen to absent himself from the court. If so, then normally, no doubt, the judge would make an express finding to that effect, and would summarise his
reasons
for the finding. In the present case the judge made no such express finding but clearly drew an equivalent inference. The point need not, however, detain us, because no objection has been taken to the inference drawn by the judge. That being so, it would seem to me that, where, as in the present case, a defendant has had the advantage of legal advice and
representation
at all stages prior to the commencement of the trial, his deliberate and conscious choice to take no further part in the proceedings could permissibly be described as a waiver of his
rights
of attendance and of legal
representation
at his trial, both at common law and under article 6 of the Convention. But acknowledging the force of the
views
expressed by my noble and learned friends Lord Hoffmann and Lord
Rodger
of Earlsferry, and bearing in mind the near impossibility of the trial judge`s task, if he had to be satisfied of the defendant`s knowledge of the full extent of his
rights
before deciding whether those
rights
had been waived, I would prefer to express my conclusion in this appeal in agreement with my noble and learned friend Lord Bingham of Cornhill on this broader basis that, even if there were no waiver, the appellant nonetheless enjoyed the convention
right
to a fair trial.
LORD HOFFMANN
My Lords,
19. I have had the advantage of reading
in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord
Rodger
of Earlsferry. I agree with both of them. Like Lord
Rodger
of Earlsferry, I am not comfortable with the notion that the defendants waived their
rights
under article 6. Waiver
requires
consciousness of the
rights
which have been waived. I agree that there is nothing to show that the defendants must have known that if they did not turn up on the date set for trial, it would proceed in their absence and without
representation
on their behalf. I would prefer to say that they deliberately chose not to exercise their
right
to be present or to give adequate instructions to enable lawyers to
represent
them.
20. But I do not read
the European cases as laying down that a trial may proceed in the absence of the accused only if there has been a waiver of the
right
to a fair trial. The question in my opinion is not whether the defendants waived the
right
to a fair trial but whether in all the circumstances they got one. It is whether on the particular facts of the case the proceedings, taken as a whole and including the appellate process, satisfied the
requirements
of the Convention. That, as I understand it, is the question which the European jurisprudence
requires
to be answered. For the
reasons
given by my noble and learned friends, with which I entirely agree, I think that the Court of Appeal was
right
to hold that there had been no infringement of article 6. I would therefore dismiss the appeal.
LORD HUTTON
My Lords,
21. A person charged with a criminal offence has a right
to be present at his trial and to defend himself in person or by instructing counsel to
represent
him. This
right
is
recognised
by the common law and by the European Convention on Human
Rights.
22. In the present case the appellant was granted bail and, with full knowledge of the date on which his trial for the offence of robbery
was due to commence, absconded before that date so that he was not present in court on that date and on subsequent dates on which his trial was
re-listed
to commence. The judge decided to proceed with the trial and the appellant was convicted by the jury. The issue which arises on this appeal is whether in such circumstances the Crown Court can conduct a trial in the absence of the defendant.
23. I consider that the authorities make it clear that a court has power to proceed with a trial when the defendant has deliberately absconded before the commencement of the proceedings to avoid trial, although it is clear that the power to proceed in such circumstances should be exercised by the trial judge with great care.
24. The authorities also show that there are two stages in the approach to be taken to the matter. The first stage is that although the defendant has a right
to be present at his trial and to put forward his defence, he may waive that
right.
The second stage is that where the
right
is waived by the defendant the judge must then exercise his discretion as to whether the trial should proceed in the absence of the defendant.
25. The matter was discussed in the judgments of the court in Victoria
in
R
v
Abrahams 21
VLR
343 where the defendants were present at the commencement of the trial but were absent at a later stage due to illness. Williams J said, at p 346:
26. Hood J stated, at p 353:
27. In R
v
Jones
(
Robert)
(No 2) [1972] 1 WLR 887 the defendant absconded during his trial which the judge ordered should continue in his absence. He was convicted and eight months after his conviction applied for an extension of time for leave to appeal, and his application was
refused
by the Court of Appeal. The Court of Appeal held that the judge had exercised his discretion properly and cited with approval the judgments in
R
v
Abrahams.
Roskill
LJ stated, at p 892:
28. In R
v
Jones,
Planter and Pengelly [1971] CrimLR 856, where the defendants were absent from the commencement of the trial, Lord Lane CJ stated (see transcript):
29. Mr Solley QC, for the appellant, relied
on the decision of the United States Supreme Court in Crosby
v
United States (1993) 506 US 255. In that case the defendant did not appear at the commencement of his trial and the trial proceeded in his absence and he was convicted. The Supreme Court allowed his appeal. However I do not consider that that decision supports the appellant's case because it was based on
Rule
43 of the Federal
Rules
of Criminal Procedure which provided:
Justice Blackmun stated:
30. Moreover, there are other statements by American appellate courts cited in the judgment of the Supreme Court which give support to the view
that, in the absence of a provision such as
Rule
43, there is no
reason
of substance for distinguishing between the absence of a defendant at the commencement of a trial and his absence at a later stage. Thus in Crosby
v
United States itself the intermediate appellate court stated:
And in Government of the Virgin
Islands
v
Brown (1975) 507 F2d 186,189 another appellate court stated that there are no "talismanic properties which differentiate the commencement of a trial from later stages".
31. Mr Solley also sought to rely
on the jurisprudence of the European Court of Human
Rights.
Article 6 of the Convention provides that in the determination of any legal charge against him a person is entitled to a fair trial and article 6(3)(c) provides that a person has the
right
"to defend himself in person or through legal assistance of his own choosing".
32. In my opinion the jurisprudence of the Court of Human Rights
does not assist the appellant. There is no decision of that court
relating
to a case where a defendant, with full knowledge of the date on which it was to commence, deliberately absconded before his trial at which, if he had been present, he would have been able to exercise the
right
given by article 6(3)(c).
33. In Colozza v
Italy 7 EHRR 516 where the applicant was declared by a judge to be untraceable and it was not established that the notice of the criminal proceedings had been personally served on him and he was convicted in his absence, the court stated at paragraphs 28-29 of its judgment, at pp 524-525:
34. In Poitrimol v
France 18 EHRR 130, 145 the court stated, at paragraph 31:
35. In the present case I consider that the deliberate decision of the defendant to abscond in breach of his bail conditions to avoid his forthcoming trial on a serious charge justifies the inference that he had no intention of putting forward a defence at that trial and that therefore he did waive his right
to defend himself in an unequivocal manner. Accordingly I am of opinion that the Court of Appeal was entitled to hold that there had been such a waiver. I further consider that the position of the appellant was adequately safeguarded in two ways. First, it was safeguarded by the fair and careful way in which the judge, and also prosecuting counsel, conducted the trial. As the Court of Appeal [2001] 3 WLR 125 stated in paragraph 41 of its judgment, at p 143:
Secondly, the position of the defendant was safeguarded by his right
to appeal against his conviction to the Court of Appeal. He exercised this
right
and the Court of Appeal conducted a careful
review
of the evidence against him and concluded at paragraph 41 of its judgment that "the case against the defendant was in our
view
overwhelming".
36. My noble and learned friends Lord Hoffmann and Lord Rodger
of Earlsferry have expressed
reservations
about the finding of the Court of Appeal as to waiver. As I have stated I consider, with
respect,
that the Court of Appeal was entitled to make this finding. But I would add that it is self-evident that the
right
given by article 6(3)(c) of the Convention to the defendant to defend himself in person or to instruct counsel to defend him is a
right
to be exercised by the defendant himself - it cannot be exercised on his behalf by someone else. Therefore even if the finding could not be made in the present case that there was an unequivocal waiver by the defendant, I consider that where no defence was put forward at the trial in consequence of the defendant's deliberate decision not to be present, there was no
violation
of the
right
given to him by article 6(3)(c) -
rather
the defendant chose not to exercise that
right.
As Salmon J stated in delivering the judgment of the Divisional Court (constituted by himself, Lord Parker CJ and Ashworth J) in
R
v
Governor of Brixton Prison, Ex p Caborn-Waterfield [1960] 2 QB 498, 508-509:
Whilst this observation was not made with reference
to article 6(3)(c) I consider that it is equally applicable to it.
37. Mr Solley QC further relied
on the principle stated in
R
v
Bertrand (1867) LR 1 PC 520, 534 (which was
referred
to in the judgments in
R
v
Abrahams 21
VLR
343):
Mr Solley submitted that the public interest in the proper administration of justice free from doubt or chance of miscarriage required
a defendant to be present at his trial at its commencement or at any
rate
for some part of it, to ensure that the case of the prosecution was properly challenged and tested, and that there could not be public confidence in the
reliability
of a conviction if the defendant had not been present at his trial.
38. The discretion of a judge to proceed with a trial in the absence of the defendant is one to be exercised with great care, but in my opinion there can be circumstances where in the interests of justice a judge is entitled to decide to proceed, particularly when the defendant has deliberately absconded to avoid trial. Some of the circumstances in the present case were described as follows by the trial judge, Judge Holloway, in his careful ruling:
In these circumstances I consider that the judge was entitled to come to the conclusion that the trial should proceed and, in my opinion, as I have stated, the public interest in a just result
was safeguarded by the fair and careful way in which the judge and prosecuting counsel conducted the trial and by the
right
of the defendant to challenge his conviction in the Court of Appeal.
39. I am in respectful
agreement with my noble and learned friend Lord Bingham of Cornhill that the matters
relevant
to the exercise of the discretion set out by the Court of Appeal in paragraph 22(5) of its judgment [2001] 3 WLR 125, 136 constitute a most
valuable
guide, and I further agree with the observations which he makes in
respect
of that list in paragraphs 14 and 15 of his speech.
40. For the reasons
which I have given I would answer the certified question in the affirmative and would dismiss this appeal.
LORD RODGER
OF EARLSFERRY
My Lords,
41. I have had the advantage of reading
the speech of my noble and learned friend, Lord Bingham of Cornhill, in draft. I agree with him that the appeal should be dismissed, but on the matter of the European Convention on Human
Rights
I would
reach
that
result
by another
route.
42. As Lord Bingham has explained, there is a tract of authority showing that for many years English courts have had the power to continue a criminal trial in the absence of the defendant. Understandably, counsel for the appellant did not seek to challenge these cases. While there may be pragmatic arguments to suggest that there is a difference between a trial that begins in the absence of the defendant and a trial that begins with the defendant present but has to continue in his absence, I can identify no difference of principle between the two situations. That being so, as a matter of principle, there must indeed be power for the English courts to start a trial when the defendant absconds. That power does not appear to have been explicitly recognised
in the cases until the decision of the Court of Appeal (Criminal Division) in
R
v
Jones,
Planter and Pengelly [1991] Crim LR 856. In the present case the Court of Appeal [2001] 3 WLR 125, 136 (
Rose
LJ)
reviewed
the authorities and concluded that in English law "the trial judge has a discretion as to whether a trial should take place or continue in the absence of a defendant and/or his legal
representatives".
Having had the advantage of considering the analysis of the English authorities in Lord Bingham's speech, I would
respectfully
agree with it and with
Rose
LJ's conclusion as to the effect of those authorities.
43. In arguing that there was no power to allow a trial to begin in the absence of the defendant, counsel for the appellant drew attention to the position in Scotland where, subject to one exception, under solemn procedure the accused must be present throughout his trial. Under that system it is indeed impossible for the court to begin or continue a trial when the accused absconds. The controlling philosophy of Scots law on this matter is the same today as two hundred years ago when, in his Commentaries on the Law of Scotland, respecting
Crimes (1844),
vol
II, pp 269-270, Baron Hume wrote:
I refer
also to Alison's Practice of the Criminal Law of Scotland, (1833), p 349. Although not mentioned by Hume, there was in fact some statutory support for the
rule
in section 10 of the Criminal Justice Act 1587, providing inter alia that all the witnesses and proof were to be "allegit,
ressonit
and deducit to the assyse in presence of the pairtie accusit in face of iudgement and na utheris wayes". This provision was, somewhat prosaically, consolidated in section 145(1) of the Criminal Procedure (Scotland) Act 1975 as "no part of a trial shall take place outwith the presence of the accused" and is now to be found in section 153(1) of the Criminal Procedure (Scotland) Act 1995. If, for instance, an accused falls ill during the trial and cannot attend, the trial must be adjourned until he is fit or, if that is not practicable, the diet must be deserted pro loco et tempore, authority being given to the Crown to start fresh proceedings when the accused
recovers.
So the
requirement
for the accused to be present at his trial is applied consistently.
44. The only significant change to the Scottish system since Baron Hume's time is that statute now confers a specific power on the trial judge to order the accused to be removed
if he misconducts himself so as to make it impossible for a proper trial to take place. In the case of an unrepresented accused, the court must appoint counsel or a solicitor to
represent
his interests during his absence: section 153(2). This exception was enacted in 1980 after doubts had arisen as to whether the judge had any such power at common law to allow a trial to proceed in the accused's absence even where he was disrupting it. The contrast with the flexible approach of English law could not be more stark.
45. Hume was, of course, well aware of the risk
that accused persons would abscond and so make a trial impossible. He explains (Commentaries,
vol
II, pp 270-271) how in his day the courts tackled the problem by pronouncing a sentence of fugitation or outlawry in order either to compel "those wicked and dangerous persons, who abscond owing to consciousness of their guilt" to appear in court or else to drive them "out of the country". Alison's Practice, pp 349-354 is to the same effect. The system of fugitation was still being operated at least as late as the end of the 19th century: HM Advocate
v
Monson (1893) 1 Adam 114, 116 and Sweeney
v
HM Advocate (1893) 21
R
(J) 44. It was eventually abolished by section 15(2) of the Criminal Justice (Scotland) Act 1949. Nowadays the penalty for failing to appear for trial is somewhat less drastic. If on bail, the accused who fails to appear can be prosecuted for breach of the
relevant
condition of his bail. In solemn proceedings, the maximum sentence is imprisonment for two years. Alternatively, proceedings may be taken for contempt of court, again with a maximum sentence of two years' imprisonment. It would be idle to pretend that these sanctions are so effective that accused persons never fail to attend for trial and never abscond during their trial.
46. Under the Scottish system, if an accused absconds before or during the trial or is taken ill during the trial and cannot attend, jurors and witnesses may well be inconvenienced. There is also a risk
that
recollections
may fade before the accused is traced and brought back for trial. Sometimes, it is true, a trial has to proceed against only some of the accused when, ideally, all should have been tried together. Depending on the circumstances, that may be thought to affect the presentation of their case either by the Crown or by the other accused. But Scots law has always struck the balance in this way between the
rights
of the accused and these wider interests of justice. So courts and prosecutors accept the position - especially, perhaps, because dock identification of the accused is the norm and trials, which are structured accordingly,
really
require
his presence. In any event in 1975, and again in 1995, Parliament endorsed the balance as previously struck by the law of Scotland. The significant point is that, for whatever
reason,
Parliament has never legislated in the same way for England and Wales to
require
the trial to take place in the presence of the defendant. More particularly, Parliament has
refrained
from doing so, even though the English courts have for many years been exercising a discretion to allow trials to be completed when the defendant is not present. The inference which I draw is that, for England and Wales, Parliament
remains
content for these matters to be
regulated
by the exercise of a judicial discretion, weighing the
relevant
factors, including, where appropriate, a defendant's flagrant decision to abscond.
47. In describing the approach which courts should adopt in the light of the authorities on English law and on the European Convention, the first two principles which the Court of Appeal [2001] 3 WLR 125 laid down were these, at pp 135-136, para 22:
Applying those principles to the appellant's case, the Court of Appeal held, at p 143, para 41:
The attractions of that robust
approach are obvious. For my part, however, I am not satisfied that in the circumstances of this case the appellant can be said to have waived these
rights
under article 6 of the Convention.
48. The European Court of Human Rights
has held in Poitrimol
v
France 18 EHRR 130, 145, para 31 that any waiver of a defendant's
right
to appear and to be
represented
at his trial
The court was there applying its previous decisions to the same effect in Pfeifer and Plankl v
Austria (1992) 14 EHRR 692, 712, para 37 and earlier cases. The Privy Council adopted that approach to waiver of a
right
to a fair hearing before an independent and impartial tribunal in Millar
v
Dickson 2002 SC (PC) 30. Lord Bingham of Cornhill held, at p 43G - H, para 31 that for these purposes "unequivocal" meant "clear and unqualified". A defendant could not waive a
right
if he was unaware that he could make the claim in question. I
refer
also to the opinion of Lord Hope of Craighead at pp 50G - 51C, paras 54 and 55.
49. In this case I am unable to find anything in the actings of the appellant that would amount to a clear and unqualified election not to claim his rights
under article 6 to be present or to be
represented.
Nor, of course, was there anything which could have acted as a safeguard attending any waiver of such important
rights.
Lord Bingham has pointed out that the appellant did not formally challenge the finding of the Court of Appeal that, by his conduct, he had waived these
rights.
Nonetheless, the matter was aired in the course of the hearing before your Lordships. Moreover, it concerns the application of the appellant's Convention
rights
and it is accordingly a matter about which the House must itself be satisfied.
50. The appellant and his co-defendant certainly knew that a trial was to take place in their case. It had originally been fixed for 9 March 1998 but that date was vacated
at the instance of the defence. The defendants last attended the police station in accordance with the terms of their bail in March 1998. Neither appeared for trial on 1 June of that year. Nor did they attend for trial on 5 or 6 October, by which time it had become clear that they had both absconded in order to avoid standing trial. The appellant was not
represented
at the hearings in October.
51. These facts certainly justify the inference that the appellant knew that he would not be present when his trial was due to take place. That does not, in itself, justify the conclusion that he had waived his right
to be present or to be
represented
at any trial of the charges against him. Such an inference could be drawn only if one could be satisfied that the appellant not only knew that the trial was due to take place when he would be absent, but also knew that it could take place even though he was not there and even though he was not
represented.
In Taylor
v
United States 414 US 19 (1973) the United States Supreme Court felt able indeed to draw such an inference in a case where the defendant had absconded during his trial, leaving behind a judge, jury and witnesses
ready
to continue. In the circumstances of this case, however, neither inference can
readily
be drawn.
52. So far as the first is concerned, it is sufficient perhaps to notice that the initial reaction
of the
very
experienced judge, Judge Holloway, was that no trial could take place in the absence of the defendants. He had never heard of such a thing and neither had the colleagues whom he consulted. An official at the Criminal Appeals Office thought that it might be possible - but he could not put his finger on a case. It would, I believe, be
rash
to attribute to the appellant greater knowledge of the arcana of English criminal procedure than Judge Holloway and his colleagues actually possessed. Doubtless, the appellant would have been aware that, if eventually brought to justice, he would be punished for absconding to avoid trial. But I see no proper basis for going further and assuming that he would actually have known that he was liable to be tried and sentenced in his absence. I am accordingly unable to draw the conclusion that the appellant had unequivocally waived his
right
to be present at any trial.
53. The inference that he had waived his right
to
representation
at any trial of the charge against him is even more difficult. One would have to infer that the appellant knew that, if the court decided to proceed to try him in his absence, it would do so in a situation where no counsel or solicitor was there to
represent
him on the
very
serious charge of armed
robbery.
In fact, at the hearing on 6 October 1998, the appellant was unrepresented from the outset, while the counsel and solicitor for his co-defendant withdrew from acting at the hearing. We were told that, in certain other cases, when a trial has proceeded in the absence of the defendant counsel have agreed to
remain
in court and to act, even in a limited way, on behalf of the defendant. The Court of Appeal [2001] 3 WLR 125 indeed envisaged that this might happen in future cases and that the presence or absence of
representation
would be a factor to be considered by the judge in deciding whether the trial should proceed in the absence of the defendant: see at p 136, para 22(5)(iv). There is nothing in the Court of Appeal's narrative of the facts to show whether the appellant knew that no counsel or solicitor would appear on his behalf at the hearing on 6 October or that the trial judge was likely to exercise his discretion by going on with the trial without the appellant being
represented.
In these circumstances I am again unable to conclude that, merely by deliberately absconding, the appellant had unequivocally waived his
right
under article 6(3)(c) of the European Convention to be
represented
by counsel at any trial of the charges against him.
54. For these reasons
I prefer to deal with the case on the basis that the appellant had not unequivocally waived his
right
to be present or to be
represented
under article 6(3)(c). His absence simply meant that he was not in a position to exercise either of these
rights
when the judge decided to proceed with the trial. The question then comes to be whether there has been a breach of the appellant's
rights
under article 6. As Mr Perry submitted, that question falls to be determined on a consideration of the whole of the proceedings, including those in the Court of Appeal.
55. In arguing that the proceedings did not meet the requirements
of article 6, Mr Solley
referred
to a number of decisions of the European Court of Human
Rights.
Lord Bingham has analysed them and I accordingly need not do so. While they provide useful guidance on particular points, the court has been at pains to emphasise that "it is not the court's function to elaborate a general theory in this area": Colozza
v
Italy (1985) 7 EHRR 516, 524, para 29. In saying this, the court was
recognising
that the contracting states have many different systems of procedure. The means by which they secure a fair trial in the absence of the defendant are correspondingly
various.
Here the issue has to be determined by looking at the way in which the courts handled the problem under English criminal procedure and by deciding whether, in the
result,
the appellant can be said to have had a fair hearing. In that
regard
the decisions of the Court of Human
Rights
relating
to
very
different procedures can be of only limited assistance.
56. The most striking feature of the trial in this case was, of course, that the defendants were not in court and there was no one to represent
them. Mr Solley suggested that the significance of this could be gauged from Judge Holloway's assessment that, for this
very
reason,
the defendants were likely to be found guilty by the jury. By contrast, at the next stage, in the Court of Appeal, the appellant was present at the hearing. He was also
represented
by senior and junior counsel, just as he was
represented
by senior and junior counsel before your Lordships' House. For these hearings he enjoyed the benefit of legal aid from public funds. The courts and legal system thus made no attempt to prevent him from being
represented.
In this
respect
his predicament is quite different, for instance, from that of the defendant in the proceedings before the appeal court at Aix-en-Provence in Poitrimol
v
France 18 EHRR 130. Here, in the Court of Appeal the appellant had every opportunity to exercise his
rights
to be present and to be
represented.
Mr Solley argued that this was too little, too late. But it is a matter to which your Lordships are entitled to attach considerable importance since it is plain that the
representation
was effective and that the Court of Appeal paid careful attention to the arguments advanced on behalf of the appellant. This is conclusively demonstrated not only by their meticulous judgment considering the points made by counsel, but also by the fact that, while the appellant's appeal against conviction was
refused,
his appeal against sentence
resulted
in the sentence being
reduced
from 13 to 11 years' imprisonment.
57. The question must therefore be whether the hearing in the Court of Appeal, with the appellant fully and effectively represented,
was such that, when the proceedings in this case are considered as a whole, one can say that the appellant has had a fair hearing in terms of article 6 even though he was not
represented
before the jury.
58. In the course of summarising the principles to be applied by courts in relation
to the trial of a defendant in his absence,
Rose
LJ indicated [2001] 3 WLR 125, 136, para 22(4) that the discretion to allow a trial to take place or continue in the absence of the defendant
Lord Bingham has stressed this caution and I would do so too. I should also wish to associate myself with his comments as to the desirability of a defendant being represented
even if he has
voluntarily
absconded. The decision of Judge Holloway to proceed with the trial in the absence of the defendants and in the absence of any
representative
was therefore exceptional. In taking it, he had
regard
to a number of factors. One, of course, was the fact that the defendants' absence was not due to illness or some other misfortune but to a deliberate decision on their part to abscond. The judge also took into account the fact that there were 35 witnesses who had come to court for the second time and who were anxiously awaiting the prospect of giving evidence. Their trauma following the
robbery
would be unlikely to go away until the defendants' guilt or innocence was determined in one way or another. If the trial did not proceed they would have to wait for an indefinite period, at the end of which some might not be willing to give evidence, some might have died and others might have emigrated. All kinds of problems could arise which would then be to the advantage of the defendants. In having
regard
in this way to the potential interests of the
victims,
jurors and wider public as well as to the
rights
of the accused, the judge was acting consistently with the established jurisprudence on article 6. The Court of Human
Rights
has
recognised
that in an appropriate case the interests of the defence are balanced against those of witnesses or
victims
called upon to testify: Doorson
v
The Netherlands (1996) 22 EHRR 330, 358, para 70. The wider public interest is always a factor to be kept in mind in applying article 6: Brown
v
Stott [2001] 2 WLR 817. The judge's decision to proceed with the trial in this case was, of course, one of the matters which the Court of Appeal examined. They considered
various
criticisms which counsel for the appellant had made of the judge's decision but they concluded [2001] 3 WLR 125, 127, para 41:
59. The first thing to notice is, therefore, that in deciding to go ahead with the trial, the judge exercised a discretion which under English law will only rarely
result
in proceedings being taken in the absence of a defendant. The Court of Appeal examined the judge's exercise of that discretion in the circumstances of this case and held that his decision to proceed was sound, being well within the ambit of what he could properly do, having
regard
to the
various
factors which he mentioned. The fact that a judge has to make a positive decision to allow a trial to proceed in the absence of a defendant and the fact that only in exceptional cases will it be proper to do so are fundamental elements of the scheme for ensuring that any such proceedings will be fair. The
reasoned
decision of the Court of Appeal that the judge was justified in proceeding with the trial in the particular circumstances of this case is therefore an initial pointer towards the fairness of these proceedings.
60. In turning to examine the course of the trial, it is necessary to bear in mind the broad outline of the case against the appellant. The evidence is described by Rose
LJ [2001] 3 WLR 125, 141F-142C, para 37. I therefore need mention only the salient points.
61. The armed robbery
happened at Euston Street Post Office in Liverpool. A police officer, Police Constable Mangan, chased the appellant and arrested him in a yard about 500 metres away from the locus. The prosecution case was based not just on the evidence of the
victims,
bystanders and police officers but also on scientific evidence
relating
both to a jacket found near the yard and to the appellant's clothes. Moreover, there was evidence that the
robbers
had been talking to one another by
radio.
A walkie-talkie, like one which the appellant had bought some time before, was found near him. He was the holder of a licence for such a
radio.
62. In the face of this powerful body of evidence connecting him with the robbery
there were only two possible ways in which the jury could have concluded that the appellant was not guilty. First, they might have concluded that he had been the
victim
of one or more dishonest policemen who had falsified the evidence, in particular by contaminating the clothing, to make it look as if the appellant had been involved. Alternatively, by some coincidence, the appellant and his co-defendant had happened to be in the wrong place at the wrong time, wearing the wrong clothes, with the
result
that they had been confused with the
real
robbers.
These were the only possibilities that occurred to the judge. There were indeed no others. Before the Court of Appeal, with the appellant present, his counsel made no submission in support of the conspiracy line of defence. Nor, as
Rose
LJ explains, at p 144A-B, did counsel suggest that, if the appellant had attended the trial, he could or would have provided an innocent explanation for the contamination of his clothing, his presence in the
vicinity
of the
robbery
or his flight from the police. He could not have shown that he was unconnected with the walkie-talkie. I should
record
that in the proceedings before the House counsel did not challenge this passage in the judgment of the Court of Appeal nor did he seek to put forward any innocent explanation at this stage.
63. In the absence of any innocent or more compelling explanation to account for the prosecution evidence, the chances of the appellant and his fellow defendant being convicted were obviously great. That is what the judge was recognising
when, in considering whether to proceed with the trial, he expressed the
view
that the defendants would inevitably be convicted if the trial went ahead in their absence and without them being
represented.
But the Court of Appeal proceedings show that neither the presence at the trial of the appellant himself nor the presence of any
representative
would have led to any alternative theory being advanced to account for the prosecution evidence or to any additional evidence being led to contradict it.
64. The jury were well aware of the two possible ways of accounting for the prosecution evidence against the appellant. In his summing up the judge was careful to draw the jury's attention to them, not only when giving an overview at the end but at various
points during his account of the evidence. In this way the judge did all that he could to ensure that, when they considered their
verdict,
the members of the jury had these possible lines of defence in mind and were able to give them whatever weight they considered to be appropriate.
65. Prosecuting counsel was conscious that he was dealing with defendants who were neither present nor represented.
He took this matter into account in the way that he led his evidence. As he acknowledged when the judge was considering whether to allow the trial to proceed, there could be no question of cutting corners. The judge
records
that prosecuting counsel did indeed adopt a slightly more challenging approach to his own witnesses than would have been normal in a case where the defendants were
represented.
In particular, he looked to see whether there were any areas that ought to be highlighted in
view
of the fact that the defendants were not present or
represented.
While it is not suggested that, in itself, what prosecuting counsel did made up for the lack of
representation
for the appellant, it is nevertheless a matter to be considered when deciding whether the proceedings can be
regarded
as fair. It should also not be forgotten that, if prosecuting counsel had acted unfairly by taking advantage of the absence of
representation
to cut corners, misrepresent the evidence or blacken the defendants, the judge could have stopped the trial. Indeed he could have done so if he had detected unfairness in the proceedings, whatever its source. In fact, of course, prosecuting counsel acted with propriety and the judge saw no
reason
to intervene.
66. The judge's summing up was obviously of even greater importance than usual. In it he gave the jury a number of directions specifically tailored to the situation where the defendants were neither present nor represented.
The members of the jury were directed that they had to
reach
their
verdict
on the evidence which they had heard and on nothing else. They were not to speculate. These directions are of a familiar kind, but the judge stressed that, where the defendants were unrepresented, it was particularly important for the jury not to speculate. They were also told, specifically, that they must not speculate as to the
reasons
for the defendants' absence and that they should not assume that the defendants' failure to attend court in any way at all established that either or both of them were guilty. The jury should carefully assess the evidence as they would have done if the defendants had been present and had been
represented
by counsel. The judge also told the jury not to assume that the fact that the defendants had not been there to give evidence in any way at all helped the prosecution to prove their case. It was
vitally
important for the jury to
remember
that there was no burden placed on a defendant to prove that he was not guilty.
67. These directions, carefully designed to deal with the particular situation that had arisen, were no mere formality. On the contrary, given the experience of judges and practitioners over many years and in various
jurisdictions, it is proper to proceed on the basis that the jury, having taken an oath to do justice, will in fact have duly applied the directions when considering their
verdicts.
Indeed the system of trial by jury depends upon this assumption. I
refer
to the observations of Lord Hope of Craighead in Montgomery
v
HM Advocate [2001] 2 WLR 779, 810C-G and to the authorities which he cites. As he notes, the Court of Human
Rights
attaches importance to directions to a jury which are specifically designed to deal with a difficulty that has arisen in the proceedings. Pullar
v
United Kingdom (1996) 22 EHRR 391, 404 - 405, paras 37 - 41 and Gregory
v
United Kingdom (1997) 25 EHRR 577, 594-595, paras 46-48 may serve as examples. It is appropriate for this House also to attach importance to these directions.
68. At this stage the various
strands
relating
to the trial can be drawn together. The judge carefully considered whether to allow the trial to go ahead in the particular circumstances. The Court of Appeal
reviewed
his decision and supported it. At the actual trial
various
steps were taken to make due allowance for the fact that the appellant was neither present nor
represented.
Prosecuting counsel took care to lead the evidence fully and in a way that did not conceal any weaknesses. The possible lines of defence were put before the jury. Although no evidence was led to support those lines, the appellant can point to none that could have been led. The jury, who had taken the appropriate oath, were given specific directions that they were not to speculate as to the
reasons
for the defendants' absence and that the burden of establishing their guilt
rested
on the prosecution, just as if the defendants had been present. All these are important factors to be taken into account when considering the fairness of the proceedings as a whole.
69. When the appellant was eventually apprehended, he appealed against his conviction and sentence. The nature of that appeal and the powers of the Court of Appeal are of relevance
for the purposes of article 6 of the Convention. In considering the appeal against conviction, the Court of Appeal were applying the test in section 2(1) of the Criminal Appeal Act 1968 under which they had to allow the appellant's appeal if they thought his conviction was unsafe. In Condron
v
United Kingdom (2001) 31 EHRR 1, 24, para 65 the Court of Human
Rights
emphasised that, where the issue was
raised,
the Court of Appeal
required
to consider whether the appellant's
rights
under article 6 had been secured:
Here the Court of Appeal [2001] 3 WLR 125 followed that approach. Rose
LJ expressed his conclusion on the appellant's appeal against conviction in these words, at p 144B, para 41:
70. So the proceedings in the Court of Appeal allowed the appellant to advance arguments not merely on the substantive merits of his conviction but also on the fairness of the trial. The Court of Appeal had power to consider both aspects and, as their judgment and their conclusion show, they were conscious of the need to examine both aspects and they did so.
71. Mr Solley argued that, even though the Court of Appeal could and did review
the merits of the conviction and the fairness of the proceedings in this way, the appeal process was insufficient to ensure the fairness of the proceedings under article 6. What was
required,
he said, was that the appeal should be conducted before a court which could
rehear
the evidence. In this connexion he
relied
on the observation of the European Court in Poitrimol
v
France 18 EHRR 130, 145, para 31 that
Here, he said, the appellant had been unable to obtain a fresh determination from a jury in a trial in which he had been present and represented.
It is true, of course, that there has been no new trial of that kind. But, as it explained in Colozza
v
Italy 7 EHRR 516, the court is not concerned to lay down general doctrines in this area. The passage in Poitrimol
v
France has to be
read
in the context of that case, involving a particular form of French proceedings.
72. M Poitrimol had been tried in the tribunal correctionnel in Marseilles where, though absent, he had been represented.
While he appealed against his conviction, he made no complaint about the fairness of those proceedings. His complaint was that the subsequent proceedings before the cour d'appel at Aix-en-Provence had been unfair. There is nothing to suggest that those proceedings would have involved anything more than pleadings on behalf of M Poitrimol. The appeal court
refused
his
request
to be tried inter partes in his absence because there was an outstanding warrant for his arrest. It therefore tried the case without M Poitrimol being present or being
represented
by his counsel, but under article 410 of the Code of Criminal Procedure the proceedings were conducted "as if he [had been] present". The appeal court eventually
ruled
that the pleadings on his behalf were inadmissible and upheld the judgment of the lower court in its entirety. The significance of the proceedings being conducted as if M Poitrimol had been present was that he thereby lost the
right
of a defendant in proceedings in absentia to use the article 489 procedure to
render
the judgment null and
void
by simply applying to the court to set it aside and to
rehear
the case. His only possible
recourse
against the judgment was an appeal to the cour de cassation, but that
route
was blocked by a (separate)
rule
that no such appeal lay where there was an outstanding warrant for his arrest. In these circumstances the Strasbourg court held that there had been a breach of article 6 of the Convention.
73. It is apparent, therefore, that the observation on which Mr Solley relied
was made in a
very
particular context where the appeal court at Aix had
refused
to consider the submissions of M Poitrimol's lawyer and had also effectively cut off any further
redress,
whether by a
rehearing
before the appeal court or by an application to the cour de cassation. In effect, he had no means of having his case heard at all.
74. Here, by contrast, the appellant has been able to appeal, with the benefit of legal aid, not only to the Court of Appeal but indeed to your Lordships' House. The Court of Appeal would not, of course, ever rehear
a case in the sense of having all the witnesses led before them. That is not part of the English system, for in that system justice can be done without it. But the Court of Appeal have full powers to consider any legal issue, to consider the transcript of the
relevant
parts of the evidence and to
receive
additional evidence if they consider it necessary or expedient to do so in the interests of justice: section 23(1)(c) and (2) of the 1968 Act. Having considered any additional evidence, the Court of Appeal may, of course, decide to
refuse
the appeal. But, equally, they may decide to allow the appeal outright or they can allow it and, if they consider that the interests of justice so
require,
order a
retrial
- at which the defendant would, of course, be
represented.
The House has
recently
given guidance on the exercise of these powers in
R
v
Pendleton [2002] 1 WLR 72 and has stressed that the Court of Appeal should consider a conviction to be unsafe if the additional evidence, if given at the trial, might
reasonably
have affected the decision of the trial jury to convict. In my
view,
under the English system, these wide powers of the Court of Appeal are sufficient, even in the case of a trial in absence, to allow the court to monitor and secure the fairness of the proceedings.
75. For present purposes, the mere existence of the power to receive
additional evidence is significant. The appellant could have invoked it if his absence or lack of
representation
had actually meant that the jury
reached
their
verdict
in ignorance of potentially exculpatory evidence. Of course, he could not in fact suggest this and therefore he could not invoke this particular power. But it was available: that is one of the guarantees of the fairness of the proceedings.
76. In the event, the Court of Appeal, having these extensive powers and being conscious of them, reviewed
both the safety of the appellant's conviction on the merits and the fairness of the proceedings as a whole. Not surprisingly, in
view
of the evidence against him, counsel for the appellant appears to have mounted no
real
challenge to the merits of his conviction. The Court of Appeal were satisfied that, on the merits, the conviction was safe. Applying their great experience, for the
reasons
which they gave in considerable detail, they also came to the
view
that the proceedings, albeit unusual, had indeed been fair. It would be impertinent to say more than that this was a
view
which they were entitled to
reach
and which should be accorded great
respect.
77. When the whole of the proceedings, before the trial court and in the Court of Appeal, are taken into account in this way, it can be seen that the appellant's rights
under article 6 have not been infringed. The other challenges to the proceedings must also be
rejected
for the
reasons given by Lord Bingham. I would accordingly dismiss the appeal.